Citation Nr: 1023879
Decision Date: 06/25/10 Archive Date: 07/01/10
DOCKET NO. 07-20 993 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Whether new and material evidence exists for service
connection of an acquired psychiatric disorder, to include
posttraumatic stress disorder (PTSD).
2. Entitlement to service connection for an acquired
psychiatric disorder, to include PTSD.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESSES AT HEARING ON APPEAL
Appellant and Appellant's Spouse
ATTORNEY FOR THE BOARD
Donna D. Ebaugh
INTRODUCTION
The Veteran had active military service from June 1967 to
June 1969.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from a May 2006 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Seattle, Washington.
Both the Veteran and his spouse testified at hearings
conducted before the RO in August 2008 and the undersigned in
February 2009. Transcripts of the hearings are of record.
In a decision dated in May 2009, the Board determined that
the Veteran had failed to submit new and material evidence to
reopen the claim for service connection for PTSD. The
Veteran appealed to the United States Court of Appeals for
Veterans Claims (Court) and in April 2010, the Court granted
a joint motion for remand for further development.
The issue as characterized on the title page of this decision
has been framed to include the larger issues of whether new
and material evidence has been presented to reopen the
service connection claim for an acquired psychiatric
disorder, to include PTSD. When originally denied in a final
rating action of July 2003, the claim was characterized as
entitlement to service connection for PTSD. Recent case law
provides that a claim for a mental health disability includes
any mental disability that may reasonably be encompassed by
the claimant's description of the claim, reported symptoms,
and the other information of record. See Clemons v.
Shinseki, 23 Vet. App. 1, 5-6 (2009). Thus, pursuant to the
holding in Clemons, the Board has more broadly characterized
the claim on appeal.
In doing so, the Board acknowledges that a change in
diagnosis or the specificity of the claim must be carefully
considered in determining whether the claim is based on a
distinct factual basis. Boggs v. Peake, 520 F.3d 1330 (Fed.
Cir. 2008). In Boggs, the United States Court of Appeals for
the Federal Circuit found that a claim for one diagnosed
disease or injury cannot be prejudiced by a prior claim for a
different diagnosed disease or injury, when it is an
independent claim based on distinct factual bases. However,
the Court clarified in Velez v. Shinseki, 23 Vet. App. 199
(2009) that the focus of the analysis must be whether the
evidence truly amounted to a new claim based upon a different
diagnosed disease or whether the evidence substantiates an
element of a previously adjudicated matter.
In this case, the Board is broadening the scope of the claim
because the present claim turns upon essentially the same
history, factual bases and diagnoses as were considered in
the prior final rating decision of July 2003 - that the
Veteran experiences a chronic psychiatric disorder as a
result of his active service. As such, the threshold
question of whether new and material evidence had been
submitted must be addressed. It is also noted that in light
of the Board's decision to reopen the claim and Remand the
matter to the RO for additional development, there can be no
prejudice to the Veteran from captioning the issue as such.
The issue of entitlement to service connection for an
acquired psychiatric disorder, to include PTSD, is addressed
in the REMAND portion of the decision below and is REMANDED
to the RO via the Appeals Management Center (AMC) in
Washington, DC.
FINDINGS OF FACT
1. In July 2003, the RO issued a decision that denied
service connection for PTSD because the Veteran's stressors
were not verifiable.
2. The evidence received since July 2003 decision relates to
unestablished facts necessary to substantiate the claim, and
raises a reasonable possibility of substantiating the claim
for service connection for an acquired psychiatric disorder,
to include PTSD.
CONCLUSIONS OF LAW
1. The July 2003 RO decision that denied the Veteran's claim
of entitlement to service connection for PTSD is final.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.1103, 20.1103
(2009).
2. The evidence received subsequent to the July 2003 RO
decision is new and material and the requirements to reopen a
claim of entitlement to service connection for an acquired
psychiatric disorder, to include PTSD, have been met.
38 U.S.C.A. §§ 5108, 5103(a), 5103A, 5107(b), 7105 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.156, 3.159 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist the Appellant
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
Regarding the issues of new and material evidence to reopen a
claim for service connection for an acquired psychiatric
disability, the Board is granting in full the benefits sought
on appeal. Accordingly, assuming, without deciding, that any
error was committed with respect to either the duty to notify
or the duty to assist, such error was harmless and need not
be further considered.
New and Material Evidence
The Veteran is claiming service connection for an acquired
psychiatric disorder, which was initially denied in July 2003
by the RO because his stressors were not verifiable. He did
not appeal and the decision became final. 38 U.S.C.A. §
7104(b) (West 2002); 38 C.F.R. §§ 20.1103 (2009).
Subsequently, the Veteran filed to reopen his claim for PTSD
in December 2004. His claim to reopen was denied in May
2005. The RO found that the Veteran had yet to submit
evidence of a verifiable in-service stressor. He filed a
notice of disagreement in August 2005 along with another
stressor statement and a letter from his wife in support of
his claim. The rating decision was confirmed denied in
December 2005 and again in May 2006. As discussed above, the
matter has been recharacterized to more accurately adjudicate
the Veteran's claim.
Because the Board has the jurisdictional responsibility to
consider whether it was proper to reopen the claim,
regardless of the RO's determination on the question of
reopening, the Board will determine whether new and material
evidence has been received and, if so, consider entitlement
to service connection on the merits. Barnett v. Brown, 83
F.3d 1380 (Fed. Cir. 1996).
In order for evidence to be sufficient to reopen a previously
disallowed claim, it must be both new and material. If the
evidence is new, but not material, the inquiry ends and the
claim cannot be reopened. See Smith v. West, 12 Vet. App.
312, 314 (1999). If it is determined that new and material
evidence has been submitted, the claim must be reopened.
Under the relevant regulation, "new" evidence is defined as
evidence not previously submitted to agency decision-makers.
"Material" evidence means existing evidence that, by itself
or when considered with previous evidence of record, relates
to an unestablished fact necessary to substantiate the claim.
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). However, lay
assertions of medical causation cannot serve as the predicate
to reopen a claim under 38 U.S.C.A. § 5108 (West 2002). See
Moray v. Brown, 5 Vet. App. 211, 214 (1993). New and
material evidence can be neither cumulative nor redundant of
the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2009).
The evidence of record at the time of the last final denial
in July 2003 included the Veteran's lay statements detailing
four stressors, not including the names of other individuals
involved in the stressful incidents, service personnel
records, service treatment records, and a VA examination.
The evidence added to the record since the July 2003 decision
consists of the Veteran's lay statements detailing an
additional seven stressors and names of individuals involved
in some of the incidents, more precise dates for some of the
incidents, a letter from the Veteran's wife, a letter from a
private physician, VA outpatient treatment records, Social
Security Administration records, a hand-drawn map regarding
the Tet Offensive and his location relative to the movements
of the Viet Cong, published writings regarding the Tet
Offensive, and sworn testimony before the RO and the Board.
As the evidence had not previously been submitted to agency
decision-makers and is not cumulative or redundant of other
evidence of record, the evidence is new under 38 C.F.R.
§ 3.156(a) (2009).
Specifically, the Veteran's lay statements detailing his
stressors are presumed to be credible when determining
whether the claim should be reopened. Justus v. Principi, 3
Vet. App. 510 (1992). Additionally, the letter from the
Veteran's private physician appears to link the Veteran's
diagnosis of PTSD to the purported stressors.
Based on the foregoing, the Board finds that the new evidence
relates to an unestablished fact necessary to substantiate
the claim, that of a causal connection to service. As such,
it is found to be material. Accordingly, the Veteran's
request to reopen the claim for service connection for an
acquired psychiatric disorder, to include PTSD, is granted.
ORDER
New and material evidence having been received, the
application to reopen a claim of entitlement to service
connection for an acquired psychiatric disorder, to include
PTSD, is granted.
REMAND
Having determined that the claim should be reopened, the
Board finds that additional development is required in order
to satisfy VA's obligations under the VCAA.
As discussed above, the Veteran's claim for service
connection for an acquired psychiatric disorder focuses on
his allegation that he suffers from PTSD.
Establishment for service connection for PTSD requires: (1)
medical evidence diagnosing PTSD; (2) credible supporting
evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a link between current
symptomatology and the claimed in-service stressor. 38
C.F.R. § 3.304(f) (2009).
In the present case, the Veteran maintains that his PTSD is
the result of eleven stressors. First, he reported that
while in his first month in Vietnam, in Long Binh, he
witnessed ammunition dumps being blown up and thought he and
his unit were being attacked. Second, he reported that while
in Saigon, he witnessed two Vietnamese and two American
soldiers kill two Vietnamese civilians in cold blood and he
feared that the Americans would kill him if he told anyone.
Third, he reported that he was present in Saigon on January
31, 1968 during the first night of the Tet Offensive and that
he stood on the roof of his supply building firing his weapon
in the direction of the enemy. He also heard shots being
fired back. He reported that the following individuals were
with him on the rooftop: Specialists Miller, Staskey or
Staseck, and Torrez. Fourth, he reported that one to two
weeks after the first night of the Tet Offensive, he found an
injured American soldier on the side of the road and detoured
to take the soldier to Ton Son Nhut for medical care. An
attendant at the hospital told the Veteran that the soldier
looked as if he had been run over and left to die. The
Veteran reported that on the way back to his compound, he
observed a Buddhist monk saturate himself in gasoline and
jump into a fire. When he returned to his compound, the
Veteran's sergeant recommended him for an Article XV for
detouring to take the soldier for treatment and took away the
Veteran's vehicle for one month. Fifth, in another stressor
statement, he also reported that he saw two Buddhist monks
set themselves on fire in protest of the war. Sixth, he
reported that he had a pet dog in Vietnam which was kidnapped
and later fed to him at a local market. Seventh, he reported
that one of his superiors, Sgt. Yanez, regularly made him
drive around all night in Saigon and that he was always in
fear for his life. Eighth, the Veteran reported that the
same Sgt. Yanez also engaged in illegal black market activity
and threatened the Veteran's life if he told anyone. Ninth,
he reported that he saw young children with missing limbs.
Tenth, he reported that he saw a fellow soldier shot in the
head. He did not name the soldier who was shot. Eleventh,
he also reported general stress surrounding his duty of
knocking on doors to see if Viet Cong were present.
Although most of the stressors listed above are vague and do
not indicate specific information as to dates of stressful
events or names of individuals involved in the events, three
of the stressors have been narrowed to more specific windows
of time and/or include names of individuals who were also
involved: (1) the ammunition dumps at Long Binh in December
1967; (2) the shooting on January 31, 1968 on the rooftop of
the supply building during the first night of the Tet
Offensive and the soldiers who served with him during the
event; (3) and the Buddhist monk who set himself on fire on
the road between Ton Son Nhut hospital and the Veteran's
compound in February 1968. Additionally, he has named his
sergeant whom he claims engaged in illegal activity.
As indicated in the joint motion for remand, VA has not
fulfilled its duty to assist by attempting to verify whether
the Veteran actually served with the service members he
named, even though attempts were made to verify other details
of the Veteran's reported stressors. Further, an attempt
should be made to verify the stressors involving the
immolation of the Buddhist monk. Thus, another attempt to
verify his stressors should be made by sending his claim to
the U.S. Army and Joint Services Records Research Center
(JSRRC).
Further, the Veteran has current diagnoses of other
psychiatric disorders including anxiety disorder, depressive
disorder, dysthymic disorder, major depression, and rule out
mental illness due to a general medical condition. The Board
also notes that a September 2004 psychology note indicated
that even though the Veteran met the "criteria for Major
Depression and experiences PTSD symptoms," "it is currently
unclear whether [the Veteran] meets criteria for PTSD or is
experiencing psychological symptoms related to COPD." The
note went on to report that "due to complicated medical
problems which impact his psychological functioning, [the
Veteran] was hospitalized." Thus, the RO should arrange for
the Veteran to undergo a VA examination at an appropriate VA
medical facility to determine whether any current psychiatric
disorder is due to service or his non-service connected COPD.
The Veteran must be advised of the importance of reporting to
the scheduled VA examination and of the possible adverse
consequences, to include denial of his claim, of failing to
so report. See 38 C.F.R. § 3.655 (2009).
Lastly, to ensure all records are available, records should
be obtained from the VA medical center where the Veteran
receives treatment for his acquired psychiatric disorders.
Accordingly, the case is REMANDED for the following action:
1. Obtain VA clinical records from the VA
Medical Centers in Yakima, Washington,
for the period from August 2008 to the
present and Walla Walla, Washington
for the period from June 2008 to the
present.
2. Attempt to verify the following: (1)
whether service members named
Specialists Miller, Staskey or
Staseck, and Torrez served with the
Veteran from January to February 1968
in Saigon, Vietnam; (2) whether he
served under a Sgt. Yanez from January
to February 1968 in Saigon, Vietnam;
(3) whether there is any record of a
Buddhist monk immolating himself on
the road between Ton Son Nhut hospital
and the Veteran's compound in February
1968; and (4) whether there is any
record of ammunition dumps being set
on fire in Long Binh in December 1967
and whether the 163rd Supply Company
was located in Long Binh in December
1967.
If the RO lacks specific information
necessary in order to seek
verification of the Veteran's
identified stressors, the RO should
make an express determination
describing its efforts to attain
additional information from the
Veteran and whether additional
attempts to verify the stressors would
be futile.
3. After all records and/or responses
received have been associated with the
claims file, the RO should arrange for
the Veteran to undergo VA examination,
by a psychiatrist, at an appropriate
VA medical facility. The entire
claims file, to include a complete
copy of this REMAND, must be made
available to the physician designated
to examine the Veteran, and the report
of the examination should include
discussion of the Veteran's documented
medical history and assertions. All
necessary tests and studies (to
include psychological testing) should
be accomplished (with all findings
made available to the psychiatrist
prior to the completion of his/her
report), and all clinical findings
should be reported in detail.
If a stressor(s) has been verified by
the JSRRC, the RO should identify that
stressor and ask the examiner to
express an opinion as to whether it is
at least as likely as not (a 50
percent or greater probability) that
the in-service stressful experience
described by the Veteran is related to
the Veteran's current diagnosis of
PTSD.
If it is determined that the claimed
in-service stressor did not occur or
that the Veteran does not suffer from
PTSD, the examiner should provide an
opinion as to whether it is at least
likely as not (a 50 percent or greater
probability) that the Veteran suffers
an acquired psychiatric disorder,
other than PTSD, that had its onset in
service or is otherwise etiologically
related to his active service.
Detailed rationale should be provided
with all opinions rendered. If the
examiner cannot provide an opinion
without resorting to mere speculation,
such should be stated with supporting
rationale.
4. After completing the above actions,
and any other development as may be
indicated by any response received as
a consequence of the actions taken in
the paragraphs above, the Veteran's
claim must be readjudicated. If the
claim remains denied, a supplemental
statement of the case (SSOC) must be
provided to the Veteran and his
representative. After the Veteran and
his representative have had an
adequate opportunity to respond, the
appeal must be returned to the Board
for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs